Monday, March 18, 2013

In 1989 the first known drug treatment
court was established in Miami
in response to a crack epidemic. Two decades later, such courts are widespread
across the US,
offering treatment instead of prison time to some defendants arrested for
drug-related felonies. Who is offered treatment is entirely at the discretion
of the judge and defendants are usually required to plead guilty in order to be
considered. Those who are offered and accept treatment are routinely drug
tested throughout the process. Additionally judges can reward or punish the behaviour of those in treatment; incentives used includes certificates, cards
and applause from the courtroom while sanctions include admonishments, assigned
essays and, disturbingly, increased drug testing and court appearances or even
a few days in jail.

The clear positive aspect of this model is
that less people are going to prison for drug offences. Many people convicted
for non-violent drug-related offences are offered an opportunity to reclaim
their lives and access the treatment they need. It is also worth celebrating
that people under this model can be saved from needless incarceration and that
fewer families will be arbitrarily separated as a result of this.

A reported 75% of people who complete the drug court programme are not arrested again for 2 years. This also means that
one in every four is, usually for another drug-related offence. Judges acknowledge that relapse is extremely common for an individual fighting an addiction, and the role of a strong support network along the road to recovery
cannot be emphasized enough. Given that drug courts appear to subscribe to a
model of addiction that allows for relapse, it is odd that relapse is punished
and treated as ‘non-compliance’. Could it be that the pressure of an
environment in which failing to complete the program successfully could result
in incarceration is not conducive to effectively battling an addiction? Perhaps
being publicly admonished in a courtroom in front of others who are in
treatment, being given a telling off at the point when support and compassion
are most needed, is not the best incentive to give up drugs. The use of a few
nights in jail as a sanction is an incredibly irresponsible part of any
treatment program and can only be a means by which to satisfy the public’s
desire to see criminals punished. Given the high levels of stress, helplessness
and guilt often associated with attempted recovery, especially in the first
year, an experience as stressful as being given jail time, even for only a few
nights, could easily push someone back into relapse. It is also likely that not
everyone successfully completing ‘treatment’ is addicted to drugs: given that
some people have been offered treatment as opposed to sentencing for the crime
of possession, it is probable that some recreational users have accepted
treatment as preferable to jail. The success rate with genuine
addicts would therefore be lower than 75% in reality.

The problem with an arrangement that twins
principles of treatment and punishment is that it cannot deliver treatment
effectively. The drug court is first and foremost an instrument of the law, and
therefore treatment is compromised because the program is still a part of the
justice system, and the punitive element will always dominate this arrangement.

There is a huge tension between the act of
sending someone who is in court for a drug-related felony to a treatment
program and sending anyone failing this program to prison. While judges apparently understand that ‘relapse is part of addiction’, and try to
accommodate this, individuals who are unable to do what the court asks of them,
including abstaining from drugs, are let go from the program and are
incarcerated. If the court recognizes, at the point at which treatment is
offered as an alternative to prison, that an individual’s criminality derives solely
from their dependence on drugs and that they need and deserve help, how then do
they justify punishing those addicts who fail the program and are surely the
most in need by forcing them to carry out a prison sentence?

Most drug users are not problematic drug users. However, for those who are, it is important to ask ourselves, why did it
take choosing treatment over prison for these people to receive help? Why were
these people allowed to find themselves in court – in some cases for stealing to
fund their addiction – and be processed by the legal system before they could
be identified and helped by a health professional? The illegality of certain drugs, as well as the media's perpetuation of the stereotype of drug users as feckless and
incompetent, stigmatises those who use them, including and especially those who
are addicted.

Public antipathy towards people who are
dependent on drugs is widespread, and this is fuelled by irresponsible and
offensive media reporting. Stigmatising language such as ‘junkie’ is used in
the media as bywords for social deviance; their effect is to dehumanize the
subject, reducing the sum of a person’s character to their drug use. This
heavily perpetuated stigmatisation can make it extremely difficult for an
individual to admit to their doctor, their family or even themselves that their
drug use is no longer recreational and has become problematic. The specific
stigma associated with illegal drug use, on top of the more generalised stigma
towards seeking help that exists in capitalist Western societies, means that
many individuals who need professional help are not getting it. Attempts to
recover from an addiction without the professional help of any kind can be incredibly dangerous if an individual decides to go cold-turkey
and suffers the effects of a sudden withdrawal. In addition to the social stigma, many drug users are denied or have restricted access to healthcare. The fear of judgement and arrest deters the
hardest-to-reach individuals from seeking treatment. The lack of empathy by
many hospital staff towards drug users further exacerbates this.

To this extent, the existence of drug
courts is a good thing, because many people who may not have otherwise sought
help are offered treatment. However, there is also a risk that drug courts can
increase the stigmatisation associated with drug use, and specifically with
those who are in rehabilitation from drug addiction. The fact that the
treatment is accepted only to avoid prison unavoidably links treatment with
punishment in an unhealthy way. People in this treatment program are made to
attend court frequently, and one of the
punishments handed out for ‘non-compliance’ is having to attend court more
often. This is creates an environment in which recovering addicts feel like they are there to be punished more than helped. Moreover, in wider society, if people see judges handing out treatment programs as sentences, this can only
further entrench the stigma attached to all people in recovery from drug
addiction, whether voluntary or not.

Another problem with the treatment program
offered by drug courts is the metric by which they measure success. Due to prohibitionist drug laws, these treatment programs are abstinence-only. Many
people fail at abstinence and, surely, a harm reduction program of treatment would be preferable to incarceration?

Furthermore, it's interesting to look at who benefits from the
massive amounts of discretion given to judges in deciding who should be offered treatment. Despite the fact that there is almost no difference in drug use between Black and White people in the US, Black people are over 10 times more likely to be imprisoned for a drug offence than White people. African Americans are more significantly more likely to be
stopped and searched, arrested and prosecuted for drug-related offences than
people of any other race in the US.
The NYCLU report that Black people and Latinos combined make up 90% of those
imprisoned in New York for drug offences. Most
illegal drug users in New York
are White.

Surely then, if the judges exhibit no
institutional racism, and 90% of those tried in court for drug-related offences are African-American, then around 90% of people going into treatment should also be
African-American. However, figures from the Brooklyn Drug Treatment Court show
that this is not the case: 75-80% of people tried in this court are Black, 15%
Latino and 10% White, yet Black people are at least 30% more likely than White
people to be expelled from drug court than White people being tried for the
same offence.

It appears that when judges are allowed
large margins of discretion, the same institutional racism that poisons much of
the justice system at the level of ‘random’ stop-and-searches, and at the level
of detainment and arrest, is apparent in the court room. Given the close
correlation that still exists between race and class in the US, and given that richer
individuals can afford to deal with a struggle with addiction in a private
setting, the all too familiar treatment of African Americans within the drug
courts seems even more pernicious.

While it is tempting to celebrate the
expansion of drug courts as a progressive step towards a more tolerant attitude
to drug use, the reality is far removed from this image. In reality, drug courts
are just as rife with institutionalised racism as much of the justice system,
focus narrowly on those who are the least in need of help, and take
a punitive attitude to recovery because they are, by necessity, bound up with the criminal
justice system.

4 comments:

Anonymous
said...

I see your point about racism within the system, this of course may well be a problem but you cannot say that the idea of drug courts should be abolished just because of this. Rather, this issue needs to be highlighed and dealt with as part of the system (not throw the baby out of the bath water altogether).

However, on the whole, I think drug courts are a good thing. We live in a society where people's actions do impact on others, so if I commit a crime, I expect to do the time just like anyone else would. Where someone has a drug addiction, that does not mean they should be immediately excused from their offence but rather that they should be therefore offered the option of treatment (if that is what they want) but of course, this needs to be monitored. If someone commits a crime but has no notion of taking responsibility for it or seeking treatment, then I really can't see any alternative but to treat them just like everyone else.

I'm not sure the same humane approach shown in drug courts is given to someone who is desperately broke and decides to commit a crime because it is seen as their only choice, so I think this lenient but also, fair approach that drug courts use should be welcomed.

I think your article is over-critical without offering an alternative solution.

I dont think the suggestion made by the author is that they be abolished - rather that they are a creation of an malfunctioning and outdated punitive policy paradigm - and reflect those problems in their nature and implementation. the key concerns are to do with:

1. The coercive nature of the treatment. Medical ethics are very clear that treatment can only very rarely be coerced and drug courts to not meet this criteria. Referals into treatment can naturally come from the CJS - but in the vast majority of cases, acceptance of treatment has to be voluntary or uncoerced.

2. The fact that medical decisions are being made by criminal justice professionals rather than clinicians in a medical setting, and the discretionary coercive powers given to the drug court judges.

3. The racial imbalance evident in implementation of drug courts, reflecting similar patterns across the CJS.

No one is saying that treatment shouldnt be made available to those in need - rather that drug courts are an imperfect method of treatment delivery (even if better than previous practice re incarceration), and that they avoid asking the question of why so many drug users are ending up in the crimainl justice system in the first place. The answer, often, is ofcourse the war on drugs - which crimainlises users and fuels crime associated with the illicit trade; this is a flawed criminal justice solution to a problem created by the flawed application of the criminal justice system in the first place.

The solution then, involves ending the war on drugs and making treatment available to meet demand.

I would like to emphasize how badly treatment under the drug court model fails to cure addiction. Since a lot of non-problematic users choose drug courts over jail, any statistics about their "success" rate is pretty much worthless. After all it's easy to cure patients who aren't sick. The dropout rate is very telling.

Abstinence is simply not going to be practical except for a minority of addicts, at least at first. Harm reduction like methadone and heroin maintenance works FAR better than abstinence. Perhaps some long acting stimulants could be developed for a similar purpose.

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